Recently, we told you about a Los Angeles-area ophthalmologist who believes HMOs are coercing poor, elderly and disabled Californians into enrolling for services by spreading falsehoods about a new state proposal that would affect patients eligible for both Medi-Cal and Medicare in eight counties, including Orange.

In light of the doctor's allegations, one professional association that has opposed the state's plan is urging the federal government to not only investigate but also amend the California proposal. The feds say they're looking into the matter, but the association believes more must be done.

The conflict boils down to a single issue: California state government wants to enroll 627,000 "dual eligible" patients into managed care to save money. Patients who qualify for Medi-Cal and Medicare are, by definition, low-income and elderly. They also tend to be immigrants and/or non-English speakers.

The state's proposal calls for these vulnerable patients to be automatically enrolled into managed care for at least six months unless they specifically ask to opt out. For months, doctors have said this "passive enrollment" strategy is cruel, because these patients won't understand the significance of their enrollment. When you join a managed care plan, often times you have to change doctors.

The HMOs apparently never told the patients that (a) the state's plan hasn't been approved by the feds yet, (b) that even if it is approved they'd have the option of opting out, and (c) that enrolling would restrict access to their current doctors. Both of Small's patients enrolled with HMOs before learning these facts, and then had trouble disentangling themselves from their new HMOs. Small says that one of his patients went legally blind in one eye while he was trying to separate himself from the HMO.

Dr. Craig Kliger, executive vice president of the eye physicians' academy, said these instances illustrate just how dangerous the state's plan will be for patients if it's approved as is. Immediately after the Watchdog wrote about Small and his patients, Kliger sent two letters to the federal Centers for Medicare and Medicaid Services (CMS), requesting that the feds remove the "passive enrollment" component of the state's dual eligible plan and review the instances in which dual eligible patients in California have recently enrolled with HMOs, to ensure they weren't tricked into doing so.

"The fact that a non-English speaking patient underwent an 'unnecessary transfer' resulting in disruption in his care for wet age-related macular degeneration and his becoming legally blind in one eye as things were 'sorted out' is fully analogous to what might happen if he had been involuntarily shifted via an 'opt-out," Kliger wrote in one letter.

Receiving those letters was David Sayen, the regional administrator at the Centers for Medicare and Medicaid Services' San Francisco office. He told the Watchdog that it's not unusual for HMOs to misrepresent the facts to potential enrollees. That's why the feds require HMOs to circle back with patients after they're initially enrolled to ensure they truly understand what they've done. Sayen said the feds closely monitor HMOs to ensure they actually do this so.

In the case of Small's patients, Sayen said the feds are investigating both matters, but simply don't have the resources to review each and every instance in which a dual eligible patient recently has enrolled with an HMO. As for Kliger's request to amend the state's proposal, Sayen said he couldn't comment because the feds have yet to rule on the state's plan, although he did add that he thought the proposal was important. Sayen said expects the feds to make a determination on the state's plan by the beginning of the year.

Kliger was less than enthused to hear what Sayen had to say.

“Asking HMOs to verify patients understand what is going on is like having the fox guard the hen house," he said in an email. " Last I understood, CMS was ultimately responsible for protecting Medicare beneficiaries."

In fact, in the case of Small's patient with macular degenerattion, the HMO involved said it did try to reach the patient but was unsuccessful.

Kliger said the feds should, at the very least, examine the statistics on recent switches to an HMO during this year's Medicare "open enrollment" and see if the numbers are larger than in past years. He said the feds could review a small number of cases to see if there was more trickery or send a letter to all dual eligibles who switched encouraging them to report coercion.

"What amounts to ‘throwing their hands up in the air' seems an inadequate response when someone has permanently lost vision as a result of apparent deception," Kliger said in an email.

The bottom line is that some doctors are going to fight the state's plan to the bitter end, which could come in days if the feds approve it. Stay tuned.

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